State and Local Regulation of Unmanned Aircraft Systems (UAS)

Fact Sheet

Federal Aviation Administration

Office of the Chief Counsel

December 17, 2015

BACKGROUND

Unmanned aircraft systems (UAS) are aircraft subject to regulation by the FAA to ensure safety
of flight, and safety of people and property on the ground. States and local jurisdictions are
increasingly exploring regulation of UAS or proceeding to enact legislation relating to UAS
operations. In 2015, approximately 45 states have considered restrictions on UAS. In addition,
public comments on the Federal Aviation Administrations (FAA) proposed rule, Operation and
Certification of Small Unmanned Aircraft Systems (Docket No. FAA-2015-0150), expressed
concern about the possible impact of state and local laws on UAS operations.

Incidents involving unauthorized and unsafe use of small, remote-controlled aircraft have risen
dramatically. Pilot reports of interactions with suspected unmanned aircraft have increased from
238 sightings in all of 2014 to 780 through August of this year. During this past summer, the
presence of multiple UAS in the vicinity of wild fires in the western U.S. prompted firefighters
to ground their aircraft on several occasions.

This fact sheet is intended to provide basic information about the federal regulatory framework
for use by states and localities when considering laws affecting UAS. State and local restrictions
affecting UAS operations should be consistent with the extensive federal statutory and regulatory
framework pertaining to control of the airspace, flight management and efficiency, air traffic
control, aviation safety, navigational facilities, and the regulation of aircraft noise at its source.

Presented below are general principles of federal law as they relate to aviation safety, and
examples of state and local laws that should be carefully considered prior to any legislative
action to ensure that they are consistent with applicable federal safety regulations. The FAAs
Office of the Chief Counsel is available for consultation on specific questions.

WHY THE FEDERAL FRAMEWORK

Congress has vested the FAA with authority to regulate the areas of airspace use, management
and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source.
49 U.S.C. 40103, 44502, and 44701-44735. Congress has directed the FAA to develop plans
and policy for the use of the navigable airspace and assign by regulation or order the use of the
airspace necessary to ensure the safety of aircraft and the efficient use of airspace. 49 U.S.C.
40103(b)(1). Congress has further directed the FAA to prescribe air traffic regulations on the
flight of aircraft (including regulations on safe altitudes) for navigating, protecting, and
identifying aircraft; protecting individuals and property on the ground; using the navigable
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airspace efficiently; and preventing collision between aircraft, between aircraft and land or water
vehicles, and between aircraft and airborne objects. 49 U.S.C. 40103(b)(2).

A consistent regulatory system for aircraft and use of airspace has the broader effect of ensuring
the highest level of safety for all aviation operations. To ensure the maintenance of a safe and
sound air transportation system and of navigable airspace free from inconsistent restrictions,
FAA has regulatory authority over matters pertaining to aviation safety.

REGULATING UAS OPERATIONS

In 333 of the FAA Modernization and Reform Act of 2012 (Public Law No. 112-95), Congress
directed the Secretary to determine whether UAS operations posing the least amount of public
risk and no threat to national security could safely be operated in the national airspace system
(NAS) and if so, to establish requirements for the safe operation of these systems in the NAS.

On February 15, 2015, the FAA proposed a framework of regulations that would allow routine
commercial use of certain small UAS in todays aviation system, while maintaining flexibility to
accommodate future technological innovations. The FAAs Notice of Proposed Rulemaking
offered safety rules for small UAS (under 55 pounds) conducting non-recreational or non-hobby
operations. The proposed rule defines permissible hours of flight, line-of-sight observation,
altitude, operator certification, optional use of visual observers, aircraft registration and marking,
and operational limits.

Consistent with its statutory authority, the FAA is requiring Federal registration of UAS in order
to operate a UAS. Registering UAS will help protect public safety in the air and on the ground,
aid the FAA in the enforcement of safety-related requirements for the operation of UAS, and
build a culture of accountability and responsibility among users operating in U.S. airspace. No
state or local UAS registration law may relieve a UAS owner or operator from complying with
the Federal UAS registration requirements. Because Federal registration is the exclusive means
for registering UAS for purposes of operating an aircraft in navigable airspace, no state or local
government may impose an additional registration requirement on the operation of UAS in
navigable airspace without first obtaining FAA approval.

Substantial air safety issues are raised when state or local governments attempt to regulate the
operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in
the navigable airspace and a significant number of municipalities followed suit, fractionalized
control of the navigable airspace could result. In turn, this patchwork quilt of differing
restrictions could severely limit the flexibility of FAA in controlling the airspace and flight
patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from
inconsistent state and local restrictions is essential to the maintenance of a safe and sound air
transportation system. See Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), and French
v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989); see also Arizona v. U.S., 567 U.S. ___, 132
S.Ct. 2492, 2502 (2012) (Where Congress occupies an entire field . . . even complimentary state
regulation is impermissible. Field preemption reflects a congressional decision to foreclose any
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state regulation in the area, even if it is parallel to federal standards.), and Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 386-87 (1992).

EXAMPLES OF STATE AND LOCAL LAWS FOR WHICH CONSULTATION WITH

THE FAA IS RECOMMENDED

Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation
of the navigable airspace. For example a city ordinance banning anyone from operating
UAS within the city limits, within the airspace of the city, or within certain distances of
landmarks. Federal courts strictly scrutinize state and local regulation of overflight. City of
Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International, Inc. v. City
and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002); American Airlines v. Town of
Hempstead, 398 F.2d 369 (2d Cir. 1968); American Airlines v. City of Audubon Park, 407
F.2d 1306 (6th Cir. 1969).
Mandating equipment or training for UAS related to aviation safety such as geo-fencing
would likely be preempted. Courts have found that state regulation pertaining to mandatory
training and equipment requirements related to aviation safety is not consistent with the
federal regulatory framework. Med-Trans Corp. v. Benton, 581 F. Supp. 2d 721, 740
(E.D.N.C. 2008); Air Evac EMS, Inc. v. Robinson, 486 F. Supp. 2d 713, 722 (M.D. Tenn.
2007).

EXAMPLES OF STATE AND LOCAL LAWS WITHIN STATE AND LOCAL

GOVERNMENT POLICE POWER

Laws traditionally related to state and local police power including land use, zoning, privacy,
trespass, and law enforcement operations generally are not subject to federal regulation.
Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002).
Examples include:

Requirement for police to obtain a warrant prior to using a UAS for surveillance.
Specifying that UAS may not be used for voyeurism.
Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual
who is hunting or fishing.
Prohibitions on attaching firearms or similar weapons to UAS.

CONTACT INFORMATION FOR QUESTIONS

The FAAs Office of the Chief Counsel is available to answer questions about the principles set
forth in this fact sheet and to consult with you about the intersection of federal, state, and local
regulation of aviation, generally, and UAS operations, specifically. You may contact the Office
of Chief Counsel in Washington, D.C. or any of the following Regional Counsels:

FAA Office of the Chief Counsel
Regulations Division (AGC-200)
800 Independence Ave. SW
Washington, DC 20591
(202) 267-3073
Central Region
Office of the Regional Counsel
901 Locust St., Room 506
Kansas City, MO 61406-2641
(816) 329-3760
(IA, KS, MO, NE)
Great Lakes Region
Office of the Regional Counsel
OHare Lake Office Center
2300 East Devon Ave.
Des Plaines, IL 60018
(847) 294-7313
(IL, IN, MI, MN, ND, OH, SD, WI)
Northwest Mountain Region
Office of the Regional Counsel
1601 Lind Ave. SW
Renton, WA 98055-4056
(425) 227-2007
(CO, ID, MT, OR, UT, WA, WY)
Southwest Region
Office of the Regional Counsel, 6N-300
10101 Hillwood Parkway Dr.
Fort Worth, TX 76177
(817) 222-5099
(AR, LA, NM, OK, TX)
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Alaskan Region
Office of the Regional Counsel
222 West 7th Ave.
Anchorage, AK 99513
(909) 271-5269
(AK)
Eastern Region
Office of the Regional Counsel
1 Aviation Plaza, Room 561
Jamaica, NY 11434-4848
(718) 553-3285
(DC, DE, MD, NJ, NY, PA, VA, WV)
New England Region
Office of the Regional Counsel
12 New England Executive Park
Burlington, MA 01803
(781) 238-7040
(CT, ME, MA, NH, RI, VT)
Southern Region
Office of the Regional Counsel
1701 Columbia Ave., Suite 530
College Park, GA 30337
(404) 305-5200
(AL, FL, GA, KY, MS, NC, SC, TN)
Western-Pacific Region
Office of the Regional Counsel
P.O. Box 92007
Los Angeles, CA 90009
(310) 725-7100
(AZ, CA, HI, NV)
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APPENDIX LIST OF AUTHORITIES

Federal Statutes

49 U.S.C. 40103, 44502, and 44701- 44735 (former Federal Aviation Act of 1958, as
amended and recodified).

FAA Modernization and Reform Act of 2012, Public Law No. 112-95 (Feb. 14, 2012),
Subtitle B, Unmanned Aircraft Systems.

Federal Regulations

Title 14 of the Code of Federal Regulations, Chapter 1.

The U.S. Supreme Court

Congress has recognized the national responsibility for regulating air commerce. Federal
control is intensive and exclusive. Planes do not wander about in the sky like vagrant
clouds. They move only by federal permission, subject to federal inspection, in the hands
of federally certified personnel and under an intricate system of federal commands. The
moment a ship taxies onto a runway it is caught up in an elaborate and detailed system of
controls. It takes off only by instruction from the control tower, it travels on prescribed
beams, it may be diverted from its intended landing, and it obeys signals and orders. Its
privileges, rights, and protection, so far as transit is concerned, it owes to the Federal
Government alone and not to any state government. Northwest Airlines v. State of
Minnesota, 322 U.S. 292, 303 (1944)(Jackson, R., concurring).

If we were to uphold the Burbank ordinance [which placed an 11 p.m. to 7 a.m. curfew
on jet flights from the Burbank Airport] and a significant number of municipalities
followed suit, it is obvious that fractionalized control of the timing of takeoffs and
landings would severely limit the flexibility of FAA in controlling air traffic flow. The
difficulties of scheduling flights to avoid congestion and the concomitant decrease in
safety would be compounded. Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624,
639 (1973).

The Federal Aviation Act requires a delicate balance between safety and efficiency, and
the protection of persons on the ground The interdependence of these factors requires a
uniform and exclusive system of federal regulation if the congressional objectives
underlying the Federal Aviation Act are to be fulfilled. Burbank at 638-639.

The paramount substantive concerns of Congress [in enacting the FAA Act] were to
regulate federally all aspects of air safety and, once aircraft were in flight, airspace
management." Burbank at 644 (Rehnquist, J. dissenting).
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U.S. Courts of Appeals

Air traffic must be regulated at the national level. Without uniform equipment
specifications, takeoff and landing rules, and safety standards, it would be impossible to
operate a national air transportation system. Gustafson v. City of Lake Angeles, 76 F.3d
778, 792-793 (6th Cir. 1996)(Jones, N., concurring).

The purpose, history, and language of the FAA [Act] lead us to conclude that Congress
intended to have a single, uniform system for regulating aviation safety. The catalytic
events leading to the enactment of the FAA [Act] helped generate this intent. The FAA
[Act] was drafted in response to a series of fatal air crashes between civil and military
aircraft operating under separate flight rules . In discussing the impetus for the FAA
[Act], the Supreme Court has also noted that regulating the aviation industry requires a
delicate balance between safety and efficiency. It is precisely because of the
interdependence of these factors that Congress enacted a uniform and exclusive system
of federal regulation. Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (9th Cir. 2007),
citing City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638-39 (1973).

[W]hen we look to the historical impetus for the FAA, its legislative history, and the
language of the [FAA] Act, it is clear that Congress intended to invest the Administrator
of the Federal Aviation Administration with the authority to enact exclusive air safety
standards. Moreover, the Administrator has chosen to exercise this authority by issuing
such pervasive regulations that we can infer a preemptive intent to displace all state law on
the subject of air safety. Montalvo at 472.

We similarly hold that federal law occupies the entire field of aviation safety. Congress'
intent to displace state law is implicit in the pervasiveness of the federal regulations, the
dominance of the federal interest in this area, and the legislative goal of establishing a
single, uniform system of control over air safety. This holding is fully consistent with our
decision in Skysign International, Inc. v. Honolulu, 276 F.3d 1109 (9th Cir. 2002), where
we considered whether federal law preempted state regulation of aerial advertising that
was distracting and potentially dangerous to persons on the ground. In upholding the state
regulations, we held that federal law has not preempt[ed] altogether any state regulation
purporting to reach into the navigable airspace. Skysign at 1116. While Congress may not
have acted to occupy exclusively all of air commerce, it has clearly indicated its intent to
be the sole regulator of aviation safety. The FAA, together with federal air safety
regulations, establish complete and thorough safety standards for interstate and
international air transportation that are not subject to supplementation by, or variation
among, states. Montalvo at 473-474.

[W]e remark the Supreme Court's reasoning regarding the need for uniformity
[concerning] the regulation of aviation noise, see City of Burbank v. Lockheed Air
Terminal, 411 U.S. 624 (1973), and suggest that the same rationale applies here. In
Burbank, the Court struck down a municipal anti-noise ordinance placing a curfew on jet
flights from a regional airport. Citing the pervasive nature of the scheme of federal
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regulation, the majority ruled that aircraft noise was wholly subject to federal hegemony,
thereby preempting state or local enactments in the field. In our view, the pervasiveness of
the federal web is as apparent in the matter of pilot qualification as in the matter of aircraft
noise. If we upheld the Rhode Island statute as applied to airline pilots, and a significant
number of [states] followed suit, it is obvious that fractionalized control ... would severely
limit the flexibility of the F.A.A . [citing Burbank] Moreover, a patchwork of state
laws in this airspace, some in conflict with each other, would create a crazyquilt effect
The regulation of interstate flight-and flyers-must of necessity be monolithic. Its very
nature permits no other conclusion. In the area of pilot fitness as in the area of aviation
noise, the [FAA] Act as we read it leave[s] no room for ... local controls. [citing
Burbank]. French v. Pan Am Express, Inc., 869 F.2d 1, 6 (1st Cir. 1989).